Arumuga Selvi vs The Additional Superintendent of Police, Thanjavur and Inspector of Police, Thanjavur East, Thanjavur

Arunachalam, J.—The Petitioner, Smt. Arumuga Selvi, the lessee running a canteen in Shanthi Kamala Theatre (Ganesh Theatre Complex)

at No. 78/3. Abraham Pandithar Road, Thanjavur. The Petitioner entered into an agreement dt. 27-2-1982 with the management of Shanti

Kamala Theatre to run the canteen for selling eatables. cigarettes, drinks, coffee, ice-cream etc., The Petitioner alleges that she started the said

business after availing loan from Syndicate Bank, Tanjore. Even though the agreement was entered into on 27-2-1982, the business could be

commenced only on 14-4-1984, after the opening of the theatre subsequent to its construction. The Petitioner is a lessee for four stalls, but what

was actually leased out was only a vacant hall. The Petitioner has put in several fittings at a considerable cost to facilitate the running of the

business. Several machineries like refrigerator, ice-cream plant, Popcorn machine, besides furniture and tools were used in the premises for running

the canteen. It is also stated in the petition that the lease had been renewed several times orally and finally it was so renewed during June, 1988 for

a further period of one year. The Petitioner accordingly has taken licence from the local authorities for running the canteen business for 1988-89

(pages 1 to 3 of the typed papers) and has also insured the stalls to the tune of Rs. 5 lakhs with New India Assurance Company for the period

ending 17-6-1989. The policy has been filed as a document in page 4 of the typed papers filed along with the petition. The Petitioner further states

in her petition that only at the inception of the tenancy, the lease was in writing and the period covered was 11 months, but subsequently it has been

renewed orally. That it must be true is proved positively by the Petitioner continuing in possession till her signature was obtained in a memo at the

Police Station on 1-1-1989.

It is also seen that on 12-12-1988, the Management of the theatre gave a notice to the Petitioner directing her to remove the materials from the

canteen premises before 31-12-1988. The Petitioner has sent a reply to the said notice on 28-12-1988. It is in this background that when the

Petitioner went to the place of business on 31-12-1988, she was told by the theatre management that the canteen should be vacated by the

midnight of 31-12-1988, as otherwise all the materials would be thrown out. The Petitioner thereafter requested the first Respondent, who is the

Additional Superintendent of Police (Town) Thanjavur, to give police protection to run the business on 31-12-1988 and 1-1-1989 since both days

were holidays, and there was no scope for her to obtain orders from court. The Petitioner could not meet the first Respondent on 31-12-1988 as

he was on leave. However, she met the first Respondent on 1-1-1989 and give a petition for police protection. After submitting the petition to the

first Respondent, the Petitioner along with her husband and other employees went to the theatre for opening the stalls, as usual, since there was a

morning show round about 10 A.M. the management virtually prevented the Petitioners group from entering the theatre. It is stated in the petition

that again around 10:30 A.M. the Petitioner and her husband met the Superintendent of Police with a copy of petition already given to the first

Respondent. The Superintendent of Police directed the Petitioner and her husband to meet the second Respondent at the office of the second

Respondent for appropriate relief. Accordingly, the Petitioner along with her husband Sivagnana Sambandam met the second Respondent and

submitted a copy of the petition already preferred to the first Respondent, around 12 noon.

The second Respondent summoned the Manager of Shanthi Kamala Theatre for conducting an enquiry. The second Respondent appears to

have held an enquiry and according to the Petitioner, he was about to pass an order in her favour. It is at or about that time, according to the

Petitioner, the first Respondent came to the office of the second Respondent and told the Petitioner that he cannot run the business, and the

business will have to be run by the theatre management itself. On the directions of the first Respondent, the second Respondent drafted a

memorandum which when translated into English runs as follows:

Office of the Inspector, Thanjavur East,

Today, after enquiring into the petitions given by T. Ramadas, Manager of Thanjavur Shanti-Kamala Theatre and P. Arumugha Selvi, who runs the

canteen in the theatre, the following conclusions were arrived at:

(1) Though the Petitioner was ready and willing to have the lease renewed, the management of the theatre was not willing to renew the lease.

Therefore, from 1st January, 1939, the second party (referring to the Petitioner herein), should not enter the theatre until she obtains orders from

court. (This clause states that it was so ordained, obviously by the Police Officer).

(2) All the articles in the four shops and the shops themselves which had been leased out to the Petitioner would be under the control of the theatre

management till the court order was obtained.

(3) Regarding this dispute, both parties should not indulge themselves in creating a breach of peace affecting the public and public transport

system.''

The signatures of both parties have been obtained in this document. After the signatures, an endorsement is made that ""Enquired and the above

decision was taken, before both the parties and they agreed to the same"". This has been signed by the Inspector of Police, who is the second

Respondent. After this endorsement, there is another endorsement in Tamil, which reads that the Petitioner objects to Clause (2) of the agreement

regarding her right, being a lessee or a license, which has to be decided by the court.

It is, therefore, obvious that though it is said to be a Joint memo by both parties, atleast regarding a part of it, the Petitioner has objected. The

document is one sided and virtually ""a decree for possession'''' with instantaneous execution in favour of the theatre management, made by the

second Respondent. Learned Public Prosecutor has produced the records concerning this matter. I find that the manager of the theatre Thiru

Ramadoss has given a petition to the second Respondent on the same day which runs as follows: �

Sir,

The licence for running a canteen and vehicles parking stand in our Shanthi Kamala Theatres (Ganesh Complex) granted to Mrs. B. Arumugha

Selvi was revoked and expired on 31st December, 1988 She was sent an Advocate''s notice on 12th December, 1988, requiring her to vacate her

canteen removing her things etc., and she has received it on 17th December, 1988. We have taken possession of the cycle, car and motor cycle,

etc., parking stand today 1st January, 1989 morning and we have arranged to run them. But she has not removed her things connected with

canteen till now. Her things are kept in our premises unlawfully with intent to intimidate and insult causing annoyance to us. We apprehend she will

commit offences and create law and order problem. Therefore we request you to provide sufficient bandobust to ensure peace and smooth running

of our Shanthi and Kamala Theatres.

A reading of this petition by Ramadoss, the Theatre Manager, will indicate that the theatre management was interested in evicting the Petitioner

from the premises and had given a notice therefor through a lawyer on 12-12-1988. It is also discernible from this petition that the management of

the theatre had taken possession of the cycle and motor-cycle stands from 1-1-1989 and had arranged to run these stands themselves. Since the

Petitioner was not agreeable to remove her belongings connected with the running of the canteen, it was apprehended that the Petitioner may

intimidate and insult the management apart from causing annoyance to them. It was also apprehended that the Petitioner will commit an offence and

create a law and order problem. The request that was made in the petition was to provide sufficient bandobust to ensure peaceful and smooth

running of the Shanti-Kamala Theatres.

The petition given by the Petitioner shows that she was admitted into possession to run the canteen by an agreement dt. 27-2-1982. She was

paying a monthly rental of Rs. 20,000/-, and there was neither arrears nor violation of any clause of the agreement. The issue of a lawyer''s notice

by the Theatre-management and the reply given by her is also stated in the petition. It is specifically stated that the Management was trying to evict

her forcibly by duress without adhering to the due process of law. According to the Petitioner, since the theatre management was run by influential

people, she had to be given protection for the apprehended that she would be thrown out. The Petitioner would state that fixing of an ultimatum to

vacate the premises on ""31-12-1988 was neither lawful nor reasonable'''' and that as a lessee in possession, she could be evicted only through

court proceedings. She had asked for Police protection only for two days on 31-12-1988 and 1-1-1989 since the courts were closed, and she

could not obtain orders from court. It is on receipt of these two petitions, that the second Respondent has prepared a memorandum, in which the

signatures, of the Petitioner and the theatre management, were obtained.

It is alleged by the Petitioner in her affidavit that the memorandum dt. 1-1-1989 had been obtained under threat of arrest and coercion and that

it was not a true decision arrived at after discussion between the parties. A mere look at the memorandum itself clearly postulates that the decision

had been taken by the Inspector of Police, the second Respondent, and reduced into writing, obviously by himself, and the parties have affixed

their signatures. It is not known under what provision the second, Respondent had acted in virtually passing an order of injunction preventing the

Petitioner from carrying on the business of running the canteen inside Shanrhi-Kamala theatre which she had taken on lease rightfully. If at all she

has to be evicted, it cannot but be, by due process of law. It appears to my mind that a short cut method had been thought of and in the guise of a

joint memo, a virtual order of injunction restraining the Petitioner from carrying on the business in the theatre premises by running the canteen, has

been made by the Police officer. It is also seen from the memo that the shops leased to the Petitioner and the articles therein had been entrusted to

the control of the theatre management.

There can be no doubt whatsoever that it is the duty of the Police to maintain law and order and prevent breach of peace. For this purpose, the

Respondents must have directed the parties to approach the Courts and get suitable orders and till such time, which could have been reasonably

fixed, given police protection to both parties on their petitions. The petition given by the theatre management has also asked only for police

protection and not for eviction of the Petitioner from the premises.

Mr. B. Kumar, appearing for the Petitioner, has prayed to quash the memorandum dt. 1-1-1989 made at the office of the Inspector of Police,

Thanjavur East, as non-est in the eye of law, and also to direct the Respondents to give the Petitioner police protection for a reasonable time

before the Petitioner could obtain orders from competent courts. This petition has been filed u/s 482 Cr.P.C.

Mr. M. Kannappa Rajendran, learned Counsel appearing for the Respondents, submitted that the provisions of Section 482, Code of Criminal

Procedure cannot be invoked in this case, and the parties must be allowed to seek redress in civil court.

I have carefully considered the arguments of both the learned Counsel. u/s 482, Cr.P.C, nothing can effect the exercise of the inherent powers

by this Court to make such orders to secure the ends of justice, though the powers may have to be exercised sparingly and to prevent miscarriage

of justice. Time and again, I asked the learned Counsel for the Respondents to inform me as to the powers under which the Respondents acted in

virtually granting an injunction restraining the Petitioner from entering the premises of the theatre to run her canteen, to which she was legally entitled

by means of an agreement. Learned Counsel for the Respondents is unable to state the powers under which the police acted, except submitting

that they acted so to maintain law and order. If, in fact, as submitted by the learned Counsel for the Respondents, the Respondents were only

interested in maintaining the law and order, the only duty cast upon them was to give protection to both the parties as prayed for by them, and not

to usurp non-existent power to grant a virtual order of injunction preventing the Petitioner from carrying on her trade to which she was entitled,

unless evicted by due process of law.

In a case of glaring injustice brought to the notice of the court, shocking its conscience, the court cannot be rendered helpless, especially when

there has been a clear misuse of the powers by the Police, in a ease which ought to have been properly dealt with by the civil court. I am of the

firm view that Section 482, Crl. P.C. can be invoked, to undo the injustice that has been done, without any power whatsoever, by the second

Respondent, as otherwise the salutary provision enshrined in Section 482, Crl. P.C. could have no effective significance at all. Judicial conscience

would dictate the need or otherwise to exercise this inherent power depending on the facts unfurled in each case. The view I am taking about the

scope of Section 482 , Crl. P.C, is also fortified by the decision rendered by a Division Bench of the Mysore High Court in M. Sejappa

Madimallappa v. State of Mysore, AIR 1966 Mys 152.

In the light of the reasoning aforementioned, the joint memorandum dt. 1st January, 1989 can have no bearing whatsoever to decide the right

of the parties, and the position prior to the joint memo automatically set in. The parties affected will have to seek recourse and obtain orders from

the competent court within two weeks from today. Till the expiry of two weeks from today, and thereafter if circumstances so warrant, the

Respondents are directed to give police protection to the Petitioner. It is rather strange that when two petitions were presented before the Police

officers seeking protection, the second Respondent had indulged in exercising powers not ordained by law. It is the duty of the Respondents to see

to it that there is no breach of peace. Ordered accordingly.